Swad v. Social Security Administration

Filing 17

RECOMMENDED DISPOSITION recommending that the Commissioner's decision should be affirmed; and that the case should be dismissed, with prejudice. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Patricia S. Harris on 3/14/2019. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
VINCENT FRANK SWAD
V.

PLAINTIFF
NO. 4:18CV00255 BSM/PSH

SOCIAL SECURITY ADMINISTRATION

DEFENDANT

RECOMMENDED DISPOSITION
The following Recommended Disposition (“Recommendation”) has been sent to Chief
United States District Judge Brian S. Miller. You may file written objections to all or part of this
Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or
legal basis for your objections; and (2) be received by the Clerk of this Court within fourteen (14)
days of this Recommendation. By not objecting, you may waive the right to appeal questions of
fact.
I. Introduction:
Plaintiff, Vincent Frank Swad, applied for disability benefits on August 26, 2014, alleging
a disability onset date of May 1, 2013.1 (Tr. at 30). The application was denied initially and upon
reconsideration Id. After conducting a hearing, the Administrative Law Judge (“ALJ”) denied Mr.
Swad’s claim. (Tr. at 40-41). The Appeals Council denied his request for review. (Tr. at 1). The
ALJ=s decision now stands as the final decision of the Commissioner, and Mr. Swad has requested
judicial review.
For the reasons stated below, the Court should affirm the decision of the Commissioner.
II. The Commissioner=s Decision:
The ALJ found that Mr. Swad had not engaged in substantial gainful activity during the

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The relevant time-period was May 1, 2013 through December 31, 2013, which is the date last insured. (Tr. at 30).

period from the alleged onset date through the date last insured of December 31, 2013. (Tr. at 32).
At Step Two of the sequential five-step analysis, the ALJ found that Mr. Swad had the following
severe impairments: plantar fasciitis, carpal tunnel syndrome, left ankle fracture status post open
reduction internal fixation, osteoarthritis of the spine, peripheral neuropathy, restless legs
syndrome, Dupuytren’s contracture, mood disorder, and bipolar disorder. (Tr. at 33).
The ALJ found that Mr. Swad’s impairments did not meet or equal a listed impairment.
Id. Before proceeding to Step Four, the ALJ determined that Mr. Swad had the residual functional
capacity (“RFC”) to perform work at the light level, with some limitations. Id. He must be able to
use a cane as needed to move to and from the workstation; he is limited to no balancing or climbing
of ladders, ropes, or scaffolds; he could perform no more than frequent handling and could not
perform foot control operations; he must not be exposed to unprotected heights or hazards in the
workplace; and he would be limited to simple, routine, repetitive tasks with simple, direct, and
concrete supervision (unskilled work). (Tr. at 35).
The ALJ next found that Mr. Swad was unable to perform any past relevant work. (Tr. at
38). The ALJ relied on the testimony of a Vocational Expert ("VE") to find that, considering Mr.
Swad's age, education, work experience and RFC, jobs existed in significant numbers in the
national economy that he could perform, such as office helper and sales attendant. (Tr. at 40).
Therefore, the ALJ found that Mr. Swad was not disabled. Id.
III.

Discussion:
A.

Standard of Review

The Court’s function on review is to determine whether the Commissioner’s decision is
supported by substantial evidence on the record as a whole and whether it is based on legal error.
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Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015); see also 42 U.S.C. § 405(g). While “substantial
evidence” is that which a reasonable mind might accept as adequate to support a conclusion,
“substantial evidence on the record as a whole” requires a court to engage in a more scrutinizing
analysis:
“[O]ur review is more than an examination of the record for the existence of
substantial evidence in support of the Commissioner’s decision; we also take
into account whatever in the record fairly detracts from that decision.” Reversal
is not warranted, however, “merely because substantial evidence would have
supported an opposite decision.”
Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (citations omitted).
It is not the task of this Court to review the evidence and make an independent decision.
Neither is it to reverse the decision of the ALJ because there is evidence in the record which
contradicts his findings. The test is whether there is substantial evidence in the record as a whole
which supports the decision of the ALJ. Miller, 784 F.3d at 477. The Court has reviewed the entire
record, including the briefs, the ALJ’s decision, and the transcript of the hearing.
B. Mr. Swad=s Arguments on Appeal
Mr. Swad contends that substantial evidence does not support the ALJ=s decision to deny
benefits. He argues that the RFC did not account for moderate limitations in social functioning,
the ALJ should have given more weight to the opinion of Swad’s PCP, and the ALJ’s Step Five
decision is flawed. After reviewing the record as a whole, the Court concludes that the ALJ did
not err in denying benefits.
While Mr. Swad’s attorney makes several technical arguments, the bottom line is that the
medical evidence of record does not support a finding of disability, especially within the relevant
time-period of May 1, 2013 through December 31, 2013. Mr. Swad focuses his argument on his
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mental impairments and problems from an ankle fracture.
A consultative psychiatric examination was conducted in June 2011. (Tr. at 379-383). The
examiner found that Mr. Swad was capable of performing activities of daily living. Id. Indeed, Mr.
Swad and his wife said he could do things like prepare simple meals, shop in stores, do basic
chores, care for himself, and go to church. (Tr. at 60-63, 267-281). Such daily activities undermine
his claims of disability. Shannon v. Chater, 54 F.3d 484, 487 (8th Cir. 1995). The psychiatric
examiner also found Mr. Swad to be cooperative and pleasant, with logical, relevant, and goaldirected conversation. (Tr. at 382). He was of average intelligence. Id. The examiner concluded
that Mr. Swad’s mental conditions were not so severe as to interfere with performance of basic
work activities. Id.
Before the relevant time-period, in July 2012, Mr. Swad was hospitalized at the Bridgeway
psychiatric facility for 8 days. (Tr. at 340). He improved during his stay; he was able to participate
in his treatment plan and express his needs. Id. He was discharged in good condition. Id.
Improvement in condition supports an ALJ’s finding that a claimant is not disabled. See Lochner
v. Sullivan, 968, F.2d 725, 728 (8th Cir. 1992).
Mr. Swad did not present for treatment for mental health problems at all during the relevant
time-period. A failure to treat an alleged impairment weighs against a claimant's credibility.
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005) When he did see his PCP, Dr. Jeff
Carfagno (after the relevant time-period), Mr. Swad had fair insight and judgment, was cooperative
upon examination, and had good mood and eye contact. (Tr. at 370-375, 397-400). He admitted
that Lyrica and Gabapentin were helpful, and he said that his condition improved when he
abstained from drinking (he had a history of alcohol abuse). (Tr. at 58-59, 370, 375). Impairments
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that are controllable or amenable to treatment do not support a finding of total disability. Mittlestedt
v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). At a visit with Dr. Carfagno in October 2014, Mr.
Swad had no overt psychopathology. (Tr. at 400).
Mr. Swad did not seek counseling or care from a mental health provider. This was in spite
of Dr. Carfagno telling him he needed to see a psychiatrist. (Tr. at 371). He did not regularly see
Dr. Carfagno for mental health complaints. He waited months between appointments, even when
Dr. Carfagno urged him to return more frequently. (Tr. at 370-371, 392). Refusal to follow a
prescribed course of treatment undercuts a claimant’s allegations of disability. Kisling v. Chater,
105 F.3d 1255, 1257 (8th Cir. 1997). However, Dr. Carfagno opined in a medical source statement
(dated over two years after the relevant time-period) that Mr. Swad would not be able to work due
to bipolar disorder; Dr. Carfagno said he could not get along with others or show up for work. (Tr.
at 420). But Mr. Swad’s mental status exams were often normal, and he did not seek formal
treatment. And his wife said he had never been fired for not getting along with others. (Tr. at 281).
Moreover, Dr. Carfagno admitted that he based his opinion on a record with “no formal testing.”
(Tr. at 416). And Dr. Carfagno added that Mr. Swad was prone to alcohol use, which he admitted
compounded his problems. Id. The ALJ gave Dr. Carfagno’s opinion little weight. It was
inconsistent with the record as a whole, and it was simply a checkbox form with no citation to the
medical record. See Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012). It was properly
discounted.
Still, the ALJ found moderate limitations based on mental health symptoms. Mr. Swad
argues that these moderate limitations should have translated to a more limited mental RFC.
However, the findings of moderate limitations at the Step Three’s Psychiatric Review Technique
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(“PRT”) do not directly correlate to an RFC finding, as the ALJ properly pointed out. (Tr. at 34).
And the ALJ is not required to included moderate PRT criteria in the RFC. See Jimison v Colvin,
513 Fed. Appx. 789, 793 (10th Cir. 2013)(mental PRT limitations are not an RFC assessment, but
are used only to rate mental impairment at Steps Two and Three). Finally, the ALJ did impose a
limitation to unskilled work, with simple tasks and simple supervision. These limitations properly
incorporated any mental symptoms, which admittedly were few and far between, and certainly did
not rise to the level of disabling.
As for Mr. Swad’s ankle problems, the record likewise does not correlate to a finding of
disability. He broke his left ankle on December 31, 2013, the very last day of the relevant timeperiod. He had surgery and by January 13, 2014, swelling was down and the wound looked good.
(Tr. at 367). Mr. Swad’s doctor instructed him to bear weight as tolerated. Id. On February 5, 2014,
Mr. Swad’s doctor told him to work on range of motion and walk on the ankle. (Tr. at 366). And
later that month, the ankle was showing improvement. (Tr. at 365). Mr. Swad said that Lyrica
helped with pain, and he did not require any aggressive treatment like injections or pain
management. His broken ankle was an acute injury, which healed, and which occurred on the last
day of the relevant time-period. And the ALJ properly accounted for the ankle injury in the RFC,
allowing the use of a cane, and limiting Mr. Swad to no balancing or climbing, and no lower
extremity foot operations. (Tr. at 35). This RFC accounted for Mr. Swad’s ankle pain, which
improved over time.2
Finally, Mr. Swad argues that the ALJ did not clearly explain what a limitation of no

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The RFC for physical work was more limited than the RFC assigned by the two state-agency doctors, who
suggested Mr. Swad could perform medium work. (Tr. at 93, 106). Clearly, the ALJ gave some credit to Mr. Swad’s
subjective complaints, including his complaints of neuropathy, which did not require aggressive treatment.

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balancing meant in the RFC. He wondered how he could perform light work if he could not
balance. But as the Commissioner points out, the VE is the expert on DOT descriptions and
occupational base, not the claimant or his attorney. VE testimony based on a properly phrased
hypothetical is evidence upon which the ALJ can rely. Porch v. Chater, 115 F.3d 567, 572 (8th
Cir. 1997). If there is any conflict in the DOT or the VE testimony, the ALJ must inquire as to that
conflict. The ALJ in this case accounted for balance problems by including the use of a cane in the
RFC, and then he asked the VE to clarify the DOT regulations on the use of a cane. (Tr. at 78-80).
The VE testified that the use of a cane for balance would not preclude work, based on his 30 years
of experience and observation of the jobs throughout his career. Id. The hypothetical properly
incorporated the RFC, the VE gave sufficient testimony, and there was no unresolved conflict at
Step Five.
VI.

Conclusion:
There is substantial evidence to support the Commissioner=s decision that Mr. Swad was

not disabled. The RFC incorporated all of Mr. Swad’s limitations, the ALJ properly discounted
Dr. Carfagno’s opinion, and there was no error at Step Five. The decision, therefore, should be
affirmed. The case should be dismissed, with prejudice.
IT IS SO ORDERED this 14th day of March, 2019.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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